Case Details -
In Lower court Bare Declaration suit was filed against brother by his sister
asking to declare the registered gift settlement deed done by father as null and void
due to un due influence and cohesion
IA under O7r11b filed saying suit is under valued since declaring the deed as null and void creates
a share in the property so suit U/s 25(d) & 27(c) of TNCF & SV Act 1955 is wrong and plaintiff
must have valued the suit U/s 25(b) of TNCF & SV Act 1955 and she is not a party to the gift deed
Trail Court Judge Allowed the IA and Rejected the Plaint saying -
u/s 34 of Specific Relief act clearly reads that in the absence of any consequential relief the suit fails.
so bare declaration to setting aside a document as null and void can not sustain when she is not the exclusive owner of the suit property and hence plaint is rejected as barred by law
Plaintiff has filed an Appeal on the following grounds
1.Its wrongly dismissed since its beyond the scope of order 7 rule 11b
2.Relief claimed is correct as appellant is not a party to the said deed and she need NOT pay a higher court fees u/s 40 of TN court feed act
3.Court has failed to note that plaintiff is not hit by embarked under order 2 rule 2 of cpc and rejection of plaint is not proper under order 7 rule 11b
4.court pointing out subsequential relief at this stage is pre mature, partition suit and declaration suit are two different one
Questions-
1) whether the trail court degree - rejecting plaint since no consequential relief (only injunction asked) asked is barred by law as per sec 34 of specific relief act is correct or what appealant and plaintiff is saying is correct ?
2) any SC Judgements related to this.
